The Rafay Murders: An Interview with Jason Flom (Part Two)
By Amanda Knox with Christopher Robinson
This is Part Two of The Rafay Murders: An Interview with Jason Flom. Please find Part One here.
I’ve gotten to know him speaking to him over the phone, and I’m very taken by his calm and gentle spirit and demeanor. He’s a thoughtful guy. He’s a very smart guy. He is a person who has been through a type of hell that very, very few people in the world can even imagine. A lot of people have lost their families, but to be accused of killing them and convicted and sent to prison for the rest of your life for that is a fate that is out of Greek tragedy.
Jason Flom is a founding board member of the Innocence Project, and he’s talking about Atif Rafay, who was convicted of murdering his entire family when he was just 18-years-old. And, small world, Atif and I were pen pals for a short time while I was imprisoned in Italy, before officials at Atif’s prison put an end to our correspondence.
The impression Atif made on Jason and myself is at direct odds with the impressions he and his friend, Sebastian Burns, made on the Bellevue, Washington police detectives investigating his family’s murders. They were convinced that the two teens―one of whom once performed in a high school play about a murder―were criminal masterminds.
July, 1994. Bellevue, Washington. The brutal massacre of a family in a quiet, middle-class, suburban neighborhood caught the attention of local media―as did Atif, the surviving son. Headlines from the weeks following the murders read: “Police Check On Alibi,” and “Can Play’s Plot Be Linked to the Murders?: High School Yearbook Combed.” No article failed to report that Atif had “not been ruled out as a suspect.” Reporters pursued him to a memorial service in Canada, where Atif hid from (or flirted with?) the cameras, and left the mosque with a little too much spring in his step.
It was no secret that within days of calling 911, both Atif and Sebastian were the prime suspects in the brutal killings of Tariq, Sultana, and Basma Rafay―Atif’s father, mother, and older sister. They willingly submitted to questioning and physical examinations, but the detectives didn’t like their attitudes―aloof, condescending even, and more giddy than aggrieved. But their alibis checked out and the police had nothing on them, so there was nothing they could do when Atif and Sebastian hopped on a bus and went to Sebastian’s home in Vancouver.
Well, there was almost nothing they could do. Six months later, in January 1995, Bellevue police detectives met with the Royal Canadian Mounted Police (RCMP) and requested their assistance in investigating Atif and Sebastian, who had since moved in with a friend of theirs named Jimmy Miyoshi. The RCMP agreed and wiretapped their house. Over the course of a few months, they obtained over 4,000 hours of recordings.
But that wasn’t all. The RCMP also executed an undercover operation designed to elicit confessions. “Mr. Big,” an interrogation technique usually employed in cold cases, involved undercover officers posing as members of a criminal organization and orchestrating “scenarios” to develop a relationship with and break down a suspect. The method is illegal in the U.S., and at the time, Atif and Sebastian were the youngest suspects ever targeted by a Mr. Big operation.
The undercover officers’ primary target was Sebastian. Over several months, they offered him illicit means of making fast cash through money laundering and trafficking stolen merchandise. They had him count stacks of cash and boasted about “toasting” people who had double crossed them, including and especially those in their employ who might get arrested and become a legal liability. Sebastian assured them he was up to the challenge, that he was willing to sell drugs and even act as a “hit man” if necessary. But when the officers probed Sebastian for information about the Rafay murders, he repeatedly denied any involvement.
It wasn’t until mid-July, when the undercover officers showed Sebastian a fake document indicating that the Bellevue police would soon arrest him, that Sebastian changed his tune. The undercover officer told Sebastian that he could arrange to destroy whatever evidence the police had on him, but that he would not do so unless Sebastian told him the complete details of the murders. Sebastian resisted. The undercover officers got angry―”I’m not putting up with this bullshit, you lying to me now,”―and upped the ante―“Don’t fuckin’ sell me short, and don’t ever let your fuckin’ friends try to sell me short, because if they start selling me short, you being in the middle is gonna hurt.” Finally, Sebastian broke. The next day, so did Atif and Jimmy Miyoshi, who claimed to have known about the murder plan a month in advance, but had not participated because he was too busy at work.
By the end of July, just over a year after the killings occurred, Atif and Sebastian were in handcuffs and charged with first degree murder. Because of protracted litigation over their extradition to the U.S., their trial didn’t begin until November 24, 2003.
The most contentious, and compelling, pieces of evidence were their confessions. On the tapes, Sebastian callously described moving through the Rafay home in his underwear, beating each of Atif’s family members to death with a baseball bat. When asked why they had killed his family, Atif claimed that it was to “become richer and more prosperous and more successful.”
Can you describe what Mr. Big is and why it’s illegal in the US?
Basically it involves the undercover police posing as mobsters, gaining the trust of the suspect, and then luring them into their little gang, and then, upon gaining their trust, say to them, “Look, we’ve got information. You guys are going to be implicated in these murders and you’re going to be in big, big trouble. But we can help you. We can make your troubles go away. But in order for us to do that, you’ve got to first tell us what really went down.” And then they make them basically weave this web of lies in order to prove their worthiness to this gang, make themselves seem tough, and at the same time they’re also being made to believe that these people are the only people that can really help them.
Atif and Sebastian’s attorneys argued the confessions shouldn’t be admitted as evidence because they were obtained through a deceptive, coercive method illegal in Washington state. There were any number of non-incriminating reasons Atif and Sebastian might have falsely confessed―intimidation, bravado, belief that the Bellevue police were actively framing them and their only allies were dangerous criminals who might “toast” them if they continued to deny involvement or got arrested. The intense spotlight of both law enforcement and the media on these teens as suspects in a gruesome murder effectively destroyed any normal social life they might have hoped for. The undercover officers, posing as gangsters, were offering Atif and Sebastian a precarious but powerful allyship at a time when they were most alone and most vulnerable. But Superior Court Judge Charles Mertel ruled to admit the confessions, arguing that there was no evidence of any duress or coercion; after all, Atif and Sebastian were highly intelligent, and always free to not associate with the undercover officers.
Why is there this sort of idea that suggestibility and impressionability correlates with a lack of intelligence, and that if you are intelligent, you’re not impressionable?
I think that in order for people to maintain that belief that they themselves would never do something this crazy, they have to then psychologically assign that to a different group of people who they feel are somehow challenged. “Those people might do that, but I would never do that.” Of course, the facts fly directly into the face of that. We know that, yes, people whose brains are not fully formed, anyone under 25, are most likely to confess. Around 25% of all DNA exonerations have involved people [who] confessed falsely to the crimes they didn’t commit. That should give everyone who’s ever going to serve on a jury a reason to be skeptical about a confession, especially if there isn’t compelling physical evidence that has corroborated it.
The prosecution didn’t have compelling physical evidence to corroborate Atif and Sebastian’s confessions. The murder weapon was never found, and physical evidence of their presence at the crime scene could be innocently explained. What the detectives did have was Jimmy Miyoshi. Detectives threatened to charge him with conspiracy to commit murder, which carried a life sentence, but then offered him immunity if he testified against his friends. Jimmy complied.
How common is it for investigators to coerce potential witnesses like this? And how is it possible to determine if his testimony is reliable or not?
I’m glad you brought that up. It’s pretty nuts when you consider that everyone knows that you cannot bribe a witness, but the government can do it with the most valuable bribe that there is. We see that just time and time again. It’s a very, very common thing. And in a lot of cases, the jury doesn’t know that. It’s a really nefarious aspect of our system, and I can’t understand how it’s allowed to exist, but it does.
Meanwhile, the trial and headlines rang with anti-elitism: “Lawyers mock ‘teenage geniuses’,” “Brilliant teens no match for cops,” further vilifying Atif and Sebastian for their education and intelligence. The prosecution cited―and the media published―unflattering, but ultimately irrelevant scribblings pulled from their high school yearbooks, in which Sebastian and Atif had written about themselves as “titans” who “descended from the clouds” and felt “furious contempt” for the “petty struggles” of “the plebs.”
What is the impact of media portrayals on criminal investigations and trials?
Probably the most famous example of it is yours. It can be devastating. When a trial is conducted in the media, [it’s] a really daunting task to find an impartial jury. We’d like to think that they’re all unaffected by it, but it can affect the views of judges, prosecutors, even defense lawyers. The impact of the media basically declaring somebody guilty is really worthy of consideration, and I think should be a factor in everybody’s mind if they end up serving on a jury.
The defense was hamstrung. All evidence relating to the militant Islamist faction was barred from court. Unable to present an alternative theory of the crime, and up against a compelling case of character assassination, Atif and Sebastian didn’t stand a chance. The jury found them guilty on May 26, 2004. At sentencing, the judge called them “amoral” and “arrogant” killers.
A lot of people who are supportive of Rafay and Burns think that they were convicted based on public opinion. What does that mean about our justice system?
It’s an indictment, but it’s also reality. It’s the world we live in. The justice system doesn’t exist in a bubble.
Both Atif and Sebastian were sentenced to life imprisonment without the possibility of parole―a sentence not without its own controversy. For however horrific the Rafay murders were, Atif and Sebastian were teenagers at the time they were committed, and the practise of imposing a death sentence or life imprisonment on people who committed crimes before their brains have fully developed has come under scrutiny.
What is the status of the current debate around sentencing people under the age of 25 to life without the possibility of parole?
The Supreme Court has made a number of rulings in the past decade related to this. First they ruled that juveniles, which is under 18, could not be sentenced to life without possibility of parole for non-homicide crimes. Then they ruled that they also couldn’t be sentenced to life without parole in homicide cases. Of course, there have been dirty tricks played in certain jurisdictions, where they have resentenced people [to] 75 years or something, so it’s effectively a life sentence anyway. But I think there is a growing momentum for change, and for us to, as a country, get more in line with the rest of the Western world, whose sentencing practices are not as draconian as ours.
In January 2020, the Juvenile Sentencing project published a memo proposing legislation to reduce the sentences of young adults aged 18-25. In Washington state, Governor Inslee signed legislation in 2018 that extended the juvenile jurisdiction for certain offenses. In February 2020, the Washington state Senate passed a bill to reform youth sentencing based on “recognized neuroscientific research showing that the brain does not fully develop until age 25.”
But that momentum for change hasn’t reached Atif and Sebastian―at least, not yet. Sebastian exhausted all of his appeals as of 2016, and Atif has just one avenue of opportunity left―a habeas petition submitted this July 22. A ruling is expected in September.
It makes me super sad that Sebastian Burns is just literally out of options, barring the longest of long shots, which is a gubernatorial clemency. And it is heavy on my heart that Atif Rafay is facing a date with destiny in the fall which, if it doesn’t go well, is a living death sentence. The idea that we’re going to doom this, I’m still gonna call him a kid, to spend the rest of his life and die in prison is just fucking awful.
Renewed interest in the convictions of Atif and Sebastian peaked with the release of Netflix’s The Confession Tapes in 2017. That is, interest on the outside. Inside, Atif spends every single day trying to push the boulder up the hill towards freedom. He called me the other day, and in a conversation interrupted by the prison phone system counting down our minutes, we talked about his habeas petition, about poetry, and life, and it was good to hear his voice. But it also crumpled my heart a bit. I remember what it was like to wake up each morning in my cell, struggling to rekindle some fight within me, to spend another day not giving up on my freedom, when my rational self could see all too clearly that the odds were against me, that I better make plans for life on the inside.
All too often, the stories of the wrongfully convicted are presented as stories of the truth inevitably triumphing against the odds. But more often than not, the wrongfully convicted stay wrongfully convicted, their lives―and the truth―swept under the rug. The innocence movement is ridden with more losses than wins, and today, there’s no telling on which side Atif and Sebastian will ultimately fall.
How does this not grind you up inside? How do you keep doing this after 30 years?
I don’t know. The only answer I can give is that the joy that comes from the ones that we’ve been able to help makes up for all the frustration and sadness and anger of all the people that we haven’t been able to help.
My closing thought on this would be to say that I hope people will get involved in this case. Go to the websites, sign petitions, write letters, talk about it anywhere you can, every time you can, not just about Atif and Sebastian, but about wrongful convictions in general. Of course, please check out my podcast, Wrongful Conviction. If you want to learn more, you can also follow me on Twitter and Instagram: @ItsJasonFlom. It’s going to take all of us working together to make a change, because our system is bloated, and it is a killing machine. It just grinds people up and spits them out. As long as this disastrous, failed social experiment―mass incarceration―persists, there’s always going to be mistakes made in extraordinary numbers. It could happen to anyone, anyone who’s ever been in the wrong place at the wrong time. It’s the most awful fate. Go to InnocenceProject.org. Learn more, donate, tweet, talk, get involved.